Two Birds Speaking

Mediation On The Rise

Mediation is fast becoming an acceptable alternative to resolving conflict. Among other things, it can proceed much quicker than litigation and is confidential. Of course, it is not easy to get parties into a room and try to work out a settlement, especially if they are not happy with one another, but when you consider the cost of paying lawyers to go in and out of court and depositions and conferences, people become frustrated with the litigation process and look for other viable ways of resolving their differences. Mediation is done routinely in matrimonial cases, but we are seeing it done increasingly in business related matters as well as in estate and guardianship cases where there is familial conflict.

Good Faith

What makes a successful mediation? Many factors play into why some cases settle while others don't, but the key factor is whether the parties enter the mediation in good faith.  So, what does “good faith” mean?

There are several definitions of “good faith,” but the one I always turn to in the context of mediation is that the parties enter the process with an open mind in terms of agreeing on an outcome that may be different than what they want going into the mediation. In other words, they are not stuck in their demand, nor are they using the mediation process to simply drag out the conflict or increase costs as a way of bullying the other side. They are willing to come to a reasonable compromise.

Active Listening

It also means having a willingness to listen to the other party, not just so you can shoot down everything they say, but to really try and get an understanding of why the other party feels or believes the way they do. I call that “active listening.”  If you take the time to truly listen to the other party, you begin to get a better understanding of what their underlying interests and concerns are which then allows the parties to come up with creative and novel ways of addressing those interests that may not have been contemplated before.

Use “I” Messages

Another helpful tip is to use “I” messages. For instance, instead of saying: YOU never respected me, or YOU never supported me, or YOU always put me down, try saying: when you did such and such, “I” felt disrespected, or “I” felt unsupported or “I” felt put down. No one responds well to being accused of anything and such an approach will only add to the anger and create more conflict. On the other hand, if you talk in terms of how certain conduct or behaviors made you feel (without accusing the other), the other person cannot deny those feelings. The last thing you want is for the mediation process itself to contribute to the underlying conflict.

Most Cases Settle Anyway So Don't Waste Your Money

Statistically, 95% of all civil cases are settled before trial. As such, it makes a great deal of sense to explore avenues of settlement as soon as possible in order to minimize costs and frustrations. The thousands of dollars you will save settling your case early on can be put to better use, I'm sure, than helping your lawyer pay his kid's college tuition!

I always encourage mediation to my clients, along with the caveat, of course, that if they decide to go down that path, they do so in the spirit of compromise and in good faith. Otherwise, they are wasting their time and money.